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in the cry of “overturn.” Many even affect the deepest pity for those who may entertain doubts as to the practicability, necessity, or expediency of such measures as are thrown before them, in however crude and undigested a form.
Why surely it can hardly be necessary to assure such persons, that changes have taken place in the world before their day, and that men have been found in all ages ready with their views of things-that, in fact, the world has exhibited but a tissue of changes, in which, where one has been for the better, too many have been for the worse. If Solon was a reformer, só also was Draco: if Brutus was a reformer, so also was Cæsar: if Martin Luther was a reformer, so also was Ignatius Loyola : if Henry Laurens was a reformer, so also was Robespierre. The cry of reform, although claimed to be, is not, in fact, a child of modern times : it is as old as ambition, discontent, or usurpation. And many too, be it remembered, who joined loudest in the shout before the battle, have proved weakest when called on to bear its shock. Whilst then every man should be willing to assist and forward every plan which he sincerely believes may tend to the public good, let no man be terrified into the belief, that because he cannot sanction such plans as may be offered for his approval, he must therefore, necessarily, be either a coward or a fool.
The plan that seems at present to have most advocates, and which carries with it the most plausible front, is that of the formation of a regular Written Code, which is to stand in the place of, and totally exclude the common law, technically so called, or that body of unwritten law, which forms the chief part of the law of England, and of this state. Now, the idea of a code combining in itself all the principles and rules of conduct by which our citizens are to be guided ; and that, too, in a compass so small as to put it in every man's power to be his own lawyer, particularly when contrasted with a law which is represented to be "destitute of fixed principles, without end,” and indeed “ where to be found," does certainly appear to possess a most manifest and decided advantage. We incline however to believe, that among all, even the most strenuous advocates for a code, there is not one who would not find himself
very awkwardly situated if called upon for a distinct and intelligible detail of his plan. If it does mean any thing, and any thing that is in reality a desideratum, it must of course mean something different from what we actually have ; and if so, it must, at the least, import a separate and complete collection of all such rules, maxims, principles and definitions, as now form the body of our unwritten law combined with such athers as different codes might furnish ; together with such
original regulations as private individuals, or the legislature itself might propose—the whole set forth in appropriate, distinct phraseology, and proclaimed by the legislature as the supreme law of the land, to the exclusion of every other. We do not say that this is all that such a code as is contended for imports, but that it imports this at the least.
It is not sufficient that this mighty and difficult collection be made under the patronage of the legislature, amounting howeverto nothing more than a private, though judicious selection of heads ; else it would be no more than a mere digest, such as abound at this day, and would but add one more to the many books of high authority, which tend only to lighten the labours of the lawyer. It must be a body of laws, emanating directly from the legislature ; a work of legislation, and clad with all the high sanctions of one of their public and official acts.
Nor is this all : it must be an exclusive system, neither to be restrained nor assisted in its operations by any thing else as law, but hanging on its own centre, it must itself furnish the rules and the spirit by which it is to be construed; else it would be but another, and let it be admitted, a superior book of rules, whose meaning, and spirit, and genius, however, is to be elicited by being brought in contact with that same common law, the destruction and abolition of which is the
end and object of the code. If this is not the true idea of a code, such as is urged upon us ; if its object and design-nay, if its very essential and fundamental principle is not the absolute exclusion of all other laws, and that it shall be a complete rule within itself-we are totally at a loss to attach any specific meaning to the proposal, or to discern the peculiar propriety or wisdom of the measure. If it means merely a revision of the laws, or an amendment of some particular branches, why not call it so at once ? and admit that no other principle is contended for so violently, but what is on all hands allowed, and every day acted on by the legislature. When pressed upon this subject, the boldest champions for a code are apt to be unhorsed, and yet all their most plausible and showy arguments fall not a particle short of the total abolition of the common law. If it be any thing short of that indeed, it must, according to their showing, but increase the measure of the existing labour and uncertainty.
When viewed in this light; when the form of our government, and the habits and genius of our people are considered; when the immense multiplicity of objects with which our laws are conversant, and the intinite variety and complication of detail which accompanied them, is taken into the account, we con
fess that the practicability of such a plan as would suit the çircumstances, and meet the exigencies of a great, improving, commercial, manufacturing, agricultural, free people, seems very problematical. To say the least of it, it is not an every-day work, nor one on a level with the capacity of every-day men. It looks to us very like setting in motion a power which it is much easier to start, than to stop or to regulate when fairly under way; ; and which, if not nicely and exactly managed, may possibly do more harm than had been apprehended. But leaving the demonstration of its practicability to those who think it feasible, we shall indulge in a few reflections on the necessity and expedienсу of such an attempt as the one which we conceive is generally meant when a code is spoken of.
The great objects proposed to be attained by a Code may be summed up generally in these two :-the one negative, that is, the emancipation of our citizens from the thraldom of what is termed that "undefinable, unintelligible something, called common law, with its numberless absurdities and deformities," and the uncertainty consequent on such a system ; the other affirmative, that is, the establishment of a rule more equal, clear, certain and defined, than that by which we have been hitherto regulated. It is therefore worth while to inquire, whether the evils complained of really exist; whether the common law of this state is involved in such absurdities as are spoken of; and whether, considering man as an imperfect, erring creature, our rule of conduct is quite so uncertain as is pretended. The same course of reflection will also throw some light on the question, whether, supposing all this to be so, a code is to work all the wonders which its advocates anticipate.
Now what is this common law which many seem so anxious to get rid of? In the answer to this simple question, its adversaries have found abundant food for ridicule and triumph. The solutions proposed have been declared vague and unintelligible ; and finally, the common law has been denounced as a thing rather of imagination than reality, destitute of the characteristics of a science, and even incapable of a correct definition. Suppose this last, however, for a moment to be true; suppose that like the terms time, gravity, matter, mind, liberty, or the multitude of other questions which are daily started in physics, pneumatology or politics, this was incapable of a definition, unassailable by objection, does it follow that it is less a science than either of them ? But let us first clear this subject of a little of the rubbish by which it has been surrounded, and then see if that simple operation does not of itself divést it of half that throws around it an appearance of mysterious deformity;
a portion, at least, of the grotesqueness of its form has been occasioned by its being reviewed through an intellectual fog.
We will see then what the common law is not. A great deal of the difficulty which some find in clearly conceiving it, arises from confounding the common law of the state of New York with the common law of England. As one is to an hundred, so is the one law to the other. Our law is a part of the law of England ; but, en masse, is as different from it as the numbers above named are from each other. The constitution of our state declares, that only such parts of the common law of England as are applicable to ourcircumstances shall forma part of our system, and by consequence, abrogates all such as are not so applicable. By this one declaration, made by an independent people, the common law of England, as such, is totally abolished, and of no force, and by the same deed such
portions of that law as suited our circumstances became engrafted into our system. It henceforth changed its name, and became the common law of this state, just as much as the judicial recognition of any rule of the Civil law by the English courts, made it ipso facto a part of the common law of England. Then by the abolition of monarchical government, with all its numerous appendages; of an ecclesiastical establishment in all its branches of the law of entails ; by the introduction of new canons of descent, new penal statutes and poor laws; by the doctrine of allodial ownership of the soil; and by the simplification of the system of courts and pleading, we have cut off from our common law, all that is revolting in that of England. We have no more to do with those parts of her common law, which relate to royal and family prerogatives, services, tythes, advowsons, with a thousand other local regulations, with their ten thousand consequent and resulting doctrines, than if they had never existed. The common law of this state does not recognize their relationship, for it is neither founded on them, nor connected with them. Simple and palpable as this view of the subject is, we apprehend that by means of it, the question stands stripped of at least half its obscurity.
Having thus determined what the common law is not, we will next inquire whatit is. Without pretending to mathematical precision, it may be defined clearly enough for all purposes, by saying that it is that unwritten system of principles and rules, recognized and enforced as obligatory on all questions that may arise either in the courts of England or of this country, and evidenced to be so recognized by treatises and books of reports of authority. To say that none but a lawyer .could understand this is to raise no other objection than might be start
ed against every definition in any science. But the definition is of very little moment; it has no more to do with the essence and value of the law, than the name of an individual has with his existence. The law is as well known to our intelligent jurists, and in our courts of justice, as the rules of the Civil law were to the imperial jurists, or even as our moral duties are understood by individuals. Difficulties arise equally in all of them, when they come to be applied to particular cases; but the law, when properly investigated, is as clear and certain in one system as in the other. It may indeed be sometimes mistaken; and so were the Roman lawyers on the construction of their code, as the rescripts will testify; and so are individuals every day as to the proper course of their conduct.
If moral certainty is sufficient to lay a foundation for science, the Common law is a science.
We may fully illustrate by a few instances, the subjects of its jurisdiction, and the manner of its growth. There are, for example, a thousand admitted existing relations, which are recognized indeed by our law, but are no more founded on written statutes than our moral obligations. Such, among others, are those of husband and wife, parent and child, master and servant, buyer and seller, lender and borrower. These the common law takes under its immediate charge; and by consequence, no other law being prescribed, it carries its supervisory care into all those ramifications of rights and duties, which naturally and necessarily arise from those admitted relations. In arriving at the results which hereafter are to be looked upon as established law, it calls for the practice and information of those experienced and conversant in given subjects, and hence gives authority and validity to customs. It consults the best informed and most enlightened judgments on the abstract propriety expediency, or morality, of any proposed points, and hence, its axioms, its principles, its maxims. It scans with critical acumen the essential ingredients of given acts, and hence its definitions.
This in a few words, and stripped of all mystery, is the Common law. Its object is to ascertain and settle the best methods for attaining the true happiness of society, according to that form into which it has become moulded, and to fix with unerring certainty such land-marks as may serve as guides in all future cases. It requires nothing more than honest investigation and unsophisticated sense, to perceive with what admirable success it bas pursued its objects. No wonder then that in all ages we find the best and the wisest men in England, eulogizing the merits of that law, and devoting the best qualities Vol. I. No. IV.